Brett Kavanaugh

Brett Kavanaugh Dodges Question About the 9th Amendment and Unenumerated Rights

The Supreme Court nominee recites precedent instead of explaining his views.

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C-SPAN

The U.S. Constitution enumerates a number of individual rights that the government is barred from violating, such as the right to free speech and the right to keep and bear arms. At the same time, the Constitution also refers to rights that it does not expressly list. The Ninth Amendment, for example, says, "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Likewise, the 14th Amendment declares, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."

Although the U.S. Supreme Court has recognized a number of unwritten rights over the years—such as the right to privacy, the right of parents to educate their children in private schools, and the right to gay marriage—some legal conservatives maintain that the federal judiciary has no business protecting unenumerated rights at all. The late conservative legal scholar Robert Bork, for instance, totally rejected the idea that there could be anything like a constitutional right to privacy. "When the Constitution has not spoken," Bork wrote, referring to privacy, "the only course for a principled Court is to let the majority have its way." In other words, because the Constitution does not specifically enumerate the right to privacy, the Supreme Court must not enforce that unwritten right against legislative enactments.

Where does Supreme Court nominee Brett Kavanaugh stand on this fundamental constitutional matter? Sen. Ted Cruz (R-Texas) gave Kavanaugh the opportunity to explain his views during yesterday's round of confirmation hearings before the Senate Judiciary Committee.

"What do you make of the Ninth Amendment?" Cruz asked. "Robert Bork famously described it as an 'ink blot.' Do you share that assessment?"

Here's what Kavanaugh said in response:

So I think the Ninth Amendment, and the Privileges and Immunities Clause, and the Supreme Court's doctrine of substantive due process are three roads that someone might take that all really lead to the same destination under the precedent of the Supreme Court now, which is that the Supreme Court precedent protects certain unenumerated rights so long as the rights are, as the Supreme Court said in the Glucksberg case, rooted in history and tradition. Justice Kagan explained this well in her confirmation hearing, that the Glucksberg test is quite important for allowing that protection of unenumerated rights that are rooted in history and tradition, which the precedent definitely establishes, but at the same time making clear that when doing that judges aren't just enacting their own policy preferences into the Constitution.

In other words, Kavanaugh dodged the question by simply describing the caselaw.

For comparison, here's how Supreme Court nominee Neil Gorsuch handled a similar question about unenumerated rights in his confirmation hearings last year:

Sen. Chris Coons (D-Del.): "Do you believe the Constitution contains a right to privacy?"

Neil Gorsuch: "Yes, Senator, I do."

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130 responses to “Brett Kavanaugh Dodges Question About the 9th Amendment and Unenumerated Rights

  1. Neil Gorsuch: “Yes, Senator, I do.”

    That monster.

  2. Imagine how anti-America that Obama SCOTUS nominee would have answered that question.

    Oh yeah, he never got a chance. Hahaha

    1. lol

  3. This is why Gorsuch is a libertarian and Kavanaugh is a conservative.

    1. Gorsuch has attacked “libertarian theory” as he called it and said it would lead to legalizing drugs, prostitution, and duels.

      1. Duels? I never knew that. William Weld for President!

  4. I’m just waiting for my right to privacy to extend outside my uterus. Especially since I don’t have one.

    1. Which is nobody’ fault, not even the Romans’ – but you have the *right* to have babies.

      1. Call him ‘Loretta’

        1. Splitter!!

    2. I self-identify my house as a uterus.

      1. So we can abort you there then… nice to know

        1. What? That makes no sense. Does anyone anywhere support the right to abort someone else’s fetus?

          1. Isn’t that what doctors do?
            Abortion isn’t really practical, let alone safe, as a do-it-yourself procedure.

            1. Depends on when it’s done.

              Medication abortions, in which the woman takes a pill, then a few hours later takes another pill, are pretty safe to be done at home. The only thing the doctor is needed for is to write the prescription.

              For that matter, if you catch it early enough, you don’t even need a prescription. Take a month’s worth of hormonal birth control pills and take ’em all at once and you have an effective Plan B that doesn’t require going to the pharmacy.?

              Abortions do become increasingly more “dangerous” the further along they are, but early on it’s a very safe procedure.
              ________
              ?Disclaimer: I am not a doctor, do not take this as medical advice.

  5. Coons asked Gorsuch a very specific question that touches the precedent the Dems are obsessed over (which really is not a “right to privacy”, otherwise it would be more generally applicable). Cruz asked a general question on a nonspecific and controversial matter. The problem with the 9th Amendment is that it proves too little or proves too much. There is not an obvious limiting principle on what qualifies as a right that it protects.

    1. Exactly. Gorsuch could answer simply “No” and satisfy Root. Kavanaugh had no such option.

      1. Gorsuch could answer “Yes”….

        1. He could’ve answered “No” and satisfied Root too.

    2. Yes. Unenumerated rights better cover more than the “right to privacy” (which is only used to defend abortion) otherwise they are not “rights” they are a single specific right.

    3. Actually, they both essentially gave the same answer. Gorsuch had to answer “yes” because Supreme Court precedent required him to. Kavanaugh answered the question by citing precedent directly.

      What Damon doesn’t say is that the Democrats are just as opposed to unenumerated rights as are conservatives, other than a limited number of specific rights (abortion, gay marriage) that are important to their key constituencies. Remember that it was the progressives of the early 20th century who developed the legal doctrine of deference to majority rule, and who concocted the notion that judges who give voice to unenumerated rights are “imposing their policy choices on the majority.” Don’t believe me? Read the Janus dissents and what they accused the majority of doing with an enumerated right.

    4. So you’re just going to gloss over that conservatives have been railing against the “right to privacy” ever since Griswold v. Connecticut?

    5. The problem with the 9th and 10th Amendments is that they were really enacted as sops to the “anti-Federalists”, principally but not exclusively from the South, who believed that the Constitution as written created a central Federal government without protecting the rights of the states to enact their own laws for their own reasons. The Amendments were intentionally vague precisely because the “Federalists” were not particularly enthused about states’ rights even then. Lincoln waged war to settle the question at the cost of 1 million American lives, but clearly the issue simmers to this day, and some (e.g., California) raise the secession issue again.

      1. That’s precisely backwards. It’s the 9th Amendment which limits the 10th — for rather obvious reasons.
        There is no such thing as States Rights, as perversion of federalism invented and promoted by the KKK, southern racists and (today) the alt-right as defined by Ron Paul. Only people have rights.

        You’re saying that state governments have powers that were never delegated. You reject the core principle of a balance of power, providing checks and balances between THREE co-equal branches.

        Your ilk claims that states ratified a Constitution that leaves is NO defense of our fundamental rights from abuse bu state and local governments. And you people swallow such bullshit to “justify” your authoritarian mentality.

  6. I don’t see a dodge. I see an answer that hints to a philosophy we disagree with.

    He talks about “so long as recognized…” type stuff.

    Which means he understands the constitution backwards, just like everyone else on the court. He sees it as granting or maybe protecting rights, not as granting limited powers to the government.

    That’s the whole point of the 9th, to underline just how the thing works. That people have rights, and the government can only infringe on them in so far as the constitution specifically allows.

    Saying you have to have established precedent to recognize a right means he doesn’t agree with the libertarian (or english speaking) interpretation of the constitution.

    1. I don’t see one either; ask an open-ended question, get a rambling answer.
      Unless, of course, you are hoping the guy will tie his own noose and wrap it around his neck in front of the hostile audience he’s dealing with.

    2. The 9th does not give a jurist much concrete guidance as to what it is applicable to, which is where I think Bork was going with his overly dismissive “ink blot” comment.

      1. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        As I understand it, this language was included to answer the objections to those who opposed the bill of rights.

        The reason they opposed the bill of rights wasn’t because they were in favor of greater power or against those rights… .they feared that future generations would view the bill of rights as an all-inclusive list, and interpret this to mean that the constitution grants rights, not that we all have rights that are inalienable.

        Of course, that is exactly what has happened.

        The simple question that Root praises: “Do you believe the Constitution contains a right to privacy?” is in the category of “not even wrong”. That entire exchange is backward – even if you agree with the sentiment. The constitution does not contain rights. It grants powers to the government. There is specific language spelling out areas where powers can never be granted to the government – but it does not contain rights.

        1. You’re right that the view that the Constitution conveys rights has grown and replaced the original view.
          It is not so clear to me that this is because of the Bill of Rights. It may well be a natural outcome of wanting the state to do more and ever more in the face of a document that tries to prevent this.
          Hard to tell either way, so automatically laying cause or motivation on the existence of the Bill of Rights is at least questionable.
          Your final paragraph is ++good.

        2. The supporters and critics of the Bill of Rights were both right.

          Without enumerated rights the authoritarians argue that there are no rights (they don’t actually respect the enumerated rights if those rights do not suit their purposes of the moment).

          With enumerated rights, they act as if those are the only ones that matter.

          The only thing that guarantees civil rights is a population that jealously values them.

          1. The only thing that guarantees civil rights is a population that jealously values them.

            Aw, crap…..

            1. I know, right?

        3. The ninth, on its own, does exactly what you say.
          What has fucked that whole concept up is the relatively recent misuse of the 14th, which was written as a direct punishment for the states and individuals, who supported the Confederacy and slavery.
          It is the use of the language of the 14th that has led to some of the most divisive decisions and laws, the government, including the courts, have made.
          It, basically turned the Constitution from one limiting government in its ability to restrict our liberties into one of government granting all kinds of “rights”, to make things “equal”.
          The 14th Amendment to the Constitution is an anathema to the original intent of the Founding.
          It points out the folly of making important decisions when in a highly emotional state, as in the time immediately after a divisive war.
          That it took a hundred years before this use of it came into fashion, should be an indicator of the improper weight it is given and its cynical misuse by statists. Those closer to its ratification knew what its intent was.

      2. The meaning of the ninth is absolutely clear in conjunction with a plain reading of the Constitution as granting specific, limited powers to government.

        It’s only when you try to twist the Constitution into a document granting broad government powers with specific protected rights that it gets confusing.

      3. The 9th does not give a jurist much concrete guidance as to what it is applicable to,

        That’s for the judiciary tio decide. Rights have evolved for 5 centuries — always in response to some abusive action by the state. The Founders knew that, being, ummm, educated, and expected rights it to continue evolving — which is also a core in libertarian principles.

    3. No, I don’t think that’s right. The Constitution protects us in two ways: By protecting rights, and limiting federal powers.

      Just because you don’t bring up the latter while answering a question about the former doesn’t mean you don’t agree with the latter.

      The 9th amendment says that rights aren’t limited to the ones that are enumerated, (And Kavanaugh is right, this wasn’t a blank check for the judiciary to invent rights, it’s limited to rights “that are rooted in history and tradition”.) and the TENTH amendment does the “only in so far as the constitution specifically allows” bit.

      I’m not going to complain that he fails to bring up the 10th amendment in a response to a question about the 9th.

      1. I think you have it backward.

        The constitution says “the government may do X”. It doesn’t say “the people are allowed to do X”

        So the courts don’t invent rights…. the government oversteps their mandate. (Abortion is contentious for other reasons, so leave that one to one side)

        There is no mandate in the constitution for regulating prostitution.

        There is no mandate in the constitution for redistributing wealth.

        There is no mandate in the constitution for providing medical care to senior citizens.

        Most of what the government does is beyond their mandate, regardless of any rights of citizens that may or may not be involved. That’s covered in the 10th, but it is also covered in the language and structure of the entire constitution. Remember, they were arguing about whether the bill of rights was needed – since they felt the language of the constitution was clear on this principle.

        1. Well, I’ve always thought that Hamilton was planting an acorn to get an oak tree, with the intention of acting all surprised, “Where did THAT come from???”; He wanted a LOT more powerful government than the rest of the founders.

          But I’ll agree that the other founders were of that view.

          1. It would be fun to put the current government in front of Hamilton. I’m sure even he could never have dreamed of a government as powerful and intrusive as the one we have wrought.

            1. Far more relevant, that;s why Jefferson argued for a new Constitutional Convention every 18-20 years, the same period that the Articles lasted.

              No generation has any right to bind later generations to a Constitution, to laws or to debt.
              “The earth belongs to the living.” We now have what he called “government by consent of the dead … by might, not of right/”

              Jefferson was ridiculing those, as authoritarians, who now piously state, “What the founders intended.” Why should anybody give s shit what they intended? “Consent of the governed” — or tyranny?

        2. The constitution says “the government may do X”. It doesn’t say “the people are allowed to do X”

          Read it again,. it also says what government may not do — which is the same as saying what the people may do — without exception.

          That’s covered in the 10th,

          As explicitly limited by the 9th.

      2. it’s limited to rights “that are rooted in history and tradition”.

        Where does it say that in the Constitution?

        1. 0bergefell makes that concept into a lie.
          The right of homosexuals to pretend to be married is rooted in neither history or tradition.
          I still don’t see why that “right to marriage” hasn’t invalidated every state’s restrictions on the concept.
          Age restrictions, number of spouses, marriage to close relatives, etc, seem all to be able to deny that “right”.
          Why are they able to stand, while the state’s laws restricting marriage to its traditional, historic place are not?
          I’m waiting for someone, who uses marriage as a way to profit from it, to impart citizenship, to claim the government has no right to prevent it. Or for a father to “marry” his son, to avoid inheritance taxes that a spouse doesn’t have to pay, but a child does.
          Just because two people are “married” doesn’t mean there must be a sexual relationship. After all, what homosexuals do isn’t, by its pure definition, sex. It is nothing more than mutual masturbation.
          If marriage is a right, it cannot be denied except through due process. Yet the process of the legislature or a plebiscite declaring homosexual marriage illegal is not accorded the same category of due process as is, say, laws allowing confiscation of property for having any tangential connection to law-breaking, even if no charges are filed.
          Creating the “right” aimed only at homosexuals was exactly “enacting their own policy preferences into the Constitution.”

          1. The right of homosexuals to pretend to be married is rooted in neither history or tradition.

            9th and 14th Amendments, slaver.

            Marriage was not even a religious sacrament until 1500 years after the death of Christ.
            So you cannot defend your blatant bigotry on Constitutional or religious grounds.
            Or morally.

            Why not go burn a cross or two?

      3. that was my 1st reaction to the question re the 9th. the tenth amendment seems more relevant.

        1. So … you somehow believe that government power is superior to the rights of the people? On what authority?

          9A deals with unenumerated rights. 10A deals with unenumerated powers. Our is a government of DELEGATED powers, and governments derive their JUST powers by the consent of the governed.
          Do the math.

  7. So has anyone seen Condi Rice showing the White Power finger symbol yet?

      1. Context is important. Did he make the DVDA gesture right before hand?

      2. No, he stopped at showing the Islamic Power symbol (index finger lifted high) when in the Middle East.

  8. In other words, Kavanaugh dodged the question by simply describing the caselaw.
    He explained his view of the 9th Amendment. How is that a dodge?

    1. Root wants a simple answer to a complicated question.

    2. As Root said, he didn’t give his own view, he simply explained current case law.

      1. Which is his view of the law.

      2. No, he explained current case law and expressed approval of it.

      3. Which may seem unsatisfactory but at one level communicates his respect for precedent and his unwillingness to override it in pursuit of whatever personal agenda he might have. In the era of “judicial activism” this is not entirely unwelcome

        1. The 9th Amendment, by definition, cannot be limited or defied by precedent, BECAUSE the founders intentionally refused to define the rights protected there.

    3. I read that as In other words, Kavanaugh dodged the question by simply describing the coleslaw.
      Which would be awesome and hilarious.

  9. “unenumerated rights that are rooted in history and tradition”

    Of course I’d add the 10th Amendment, which is a presumption against federal power. But as far as the 9th Amendment and privileges and immunities are concerned, the reference in the constitution seems to be to rights recognized at the time these parts of the Constitution were ratified.

    So as far as rights recognized at the time, I wouldn’t include humping and aborting, but such things as these (acknowledged by states and jurists of the relevant era):

    -The right to a judicial remedy for injuries to person, property or reputatin.

    -The right to bail in non-capital cases, and even in capital cases if the evidence isn’t strong enough.

    -The right of conscientious objectors not to render military service in person

    -The right not to have your property promised to anyone before it’s forfeited

    -The right of parents to direct the upbringing of their children

    1. The likely intention of the 9th amendment was to protect those rights established by precedent in English Common Law, not a blank check for anything one may assert.

    2. Eddy, this whole article was a clever way of just saying “Kavanaugh won’t guarantee that abortion is protected by the Constitution”. The last sentence gave it away.

      1. Possibly, except that he has stated that he considers Roe to be “settled law”. Which may or may not mean anything. After all, Dred Scott was settled law for decades too.

    3. I’d add, in reference to a recent post here, the right to feed the hungry.

  10. There’s the problem with appointing a conservative to the bench – they still believe in the rule of law. When only one side is still following the rules and the other side makes the rules up as they go along, it’s a sucker’s game to continue following the rules.

  11. still > Gerrick Marland

    1. Dodged a bullet there.

      1. There’s the dodge.

        1. Admittedly, I would find it hilarious if RBG croaked and Trump offered Garland as his nominee to replace her.

          1. Hah! Can you picture the whiplash the leftards would get trying to switch from singing his praises to claiming he’s the devil?

            Personally, I’d like to see Trump nominate Andrew Napolitano, but for entertainment value I’d take Bork.

            -jcr

            1. Was Bork re-animated already? I knew they were talking about it, but I didn’t know they went through with it.

          2. Will never happen. Trump will select the next best person off of his list. Garland is not on the list and never will be.

            One more conservative as a spare is needed. None these folks are young. Its only going to be 5-4 good guys after Kavanaugh is confirmed.

            And we see what who the Ds nominate. Law, constitution, [precedent are meaningless. RBG even thinks international law is relevant. Seriously

            1. I won’t even be 5-4 because Alito and Roberts are terrible. Don’t forget the penaltax!

              1. Don’t forget that Roberts also killed the Medicaid expansion.

  12. Oh no, he answered the complex, open-ended question that he was asked, and not the simple, narrowly tailored question that he was supposed to answer!?

    Fucking morons. The #BlueWave isn’t even going to make it to the beach as long as this is what passes for intellect among the progressives.

    1. lord, vinnie wait till booker gets up there.

  13. “For comparison, here’s how Supreme Court nominee Neil Gorsuch handled a similar question about unenumerated rights in his confirmation hearings last year:

    Sen. Chris Coons (D-Del.): “Do you believe the Constitution contains a right to privacy?”

    Neil Gorsuch: “Yes, Senator, I do.”

    That’s not the entirety of unenumerated rights. Your whole article is suppose to be about the 9th Amendment and unenumerated rights, but all you’re upset about is that he won’t say that abortion (since that’s pretty much all the right to privacy covers) is protected by the Constitution.

    Consider a new title for this article

    1. Very true.
      Wouldn’t an individual’s right to privacy make virtually everything the NSA does, unconstitutional?
      And, not just its domestic surveillance, since the courts seem to believe the Constitution applies to everyone, worldwide.
      Another example of “enacting their own policy preferences into the Constitution” and not looking at the far reaching ramifications, as progressives are wont to do.

      1. Wouldn’t an individual’s right to privacy make virtually everything the NSA does, unconstitutional?Yes, but not all of it.

    2. Speaking as one of the most private people you could ever hope to meet and one who wishes like hell that there were in fact a Constitutional right to privacy, no I do not believe the Constitution contains such a right. Remember, the only way Douglas got there was by referring to the “auras” and “emanations” arising from the Bill of Rights generally. Douglas wanted desperately to create a legacy by bringing Frankfurter’s vision of a “right to privacy” to fruition, and he did so by writing the most intellectually dishonest SCOTUS opinion to date, exceeded in our time only by Roe v Wade.

      1. Umm, what is included in the right to Liberty? The group of rights called Pursuit if Happiness.
        And since the Founders refused to define the rights protected by 9A, why should anyone care what you think?

  14. He’s not going to answer questions that pertain to future cases he might hear. So all that is left is to explain \are his past decisions.

    Its not a dodge.

    1. He has done nothing but dodge questions about his previous decisions and court opinions.

      1. He has 500,000 pages of documents. The questions are a political circus.

        1. A useless number, less than 10% of his available documents.
          You’ve been snookered by the authoritarian right.

  15. The Supreme Court nominee recites precedent instead of explaining his views.

    Good for him. #ItsATrap

    1. Only fools and assholes are trapped.
      And Trumptards (same thing)


  16. Sen. Chris Coons (D-Del.): “Do you believe the Constitution contains a right to privacy?”

    Neil Gorsuch: “Yes, Senator, I do.”

    As much as I like Gorsuch, this is the wrong answer. He should have said “No, because the constitution contains no rights of the people it only outlines the limited enumerated powers and authorities of the government. Everything not explicitly TAKEN from the people and granted to the govt in the constitution is in fact a right held by the people. Almost all the federal laws on the books today are in violation of the 9th (and 10th) amendments.”

    1. Incorrect. The 4th amendment makes is obvious that privacy is protected. The 1st amendment should be used as a reference as to how important individual freedom from government overreach, including state governments. I fucking hate all these little states rights bitches that want to take away individual freedom. Go fucking read the Constitution for once.

      1. You misunderstand what he is saying.

        The constitution is clear – the government gets a small set of enumerated powers.

        About 5 minutes after the ink was dry, everyone realized that this was unworkable and started expanding that set of powers without altering the constitution.

        Chipper is right – almost everything the feds do is in violation of the constitution. It is extremely limiting. So we just ignore it.

        The 4th does clearly seek to protect a right to privacy – but it talks about a limited way in which the government can violate this right. You don’t need to go to the 4th to say “the government cannot regulate medical procedures.” All you have to do is ask “exactly where in the constitution is the federal government granted the authority to regulate medical procedures?”

        The answer is “nowhere”. It isn’t in there.

        There are loads of things that most people support as “a really good idea” or even “very important” that are still unconstitutional. The FDA might fit, but there is some interstate aspect of their mandate. Regulations requiring prescriptions are pretty far afield from interstate commerce. And growing pot in your back yard is definitely beyond the pale.

        I don’t read any of what he wrote as “the states should be able to do whatever they like”.

        In fact, the language he uses would intimate that he might think that the 14th and incorporation means that the states are also extremely limited in their powers.

        1. Except, prior to Roe, the feds were not regulating medical procedures. Roe said the states were not allowed to regulate this particular medical procedure and created a federal regulation for abortion out of whole cloth. Roe granted the feds and the court regulatory and legislative authority the Constitution did not contemplate.

          1. The FDA started regulating drugs in 1906. Disease control was codified at least by 1944.

            But it does appear that the bulk of law regulating actual medical procedures at the federal level revolve around protecting or outlawing abortion – at least as far as google is concerned.

          2. To the contrary, they said that they could regulate it, but they could not categorically ban it.

            That said, the comparisons to other medical procedures are pretty tone-deaf. The reason we don’t have any constitutional debate over knee surgeries isn’t because we don’t have a constitutional right to them, it’s because we don’t have any politically active group trying to categorically ban them.

            Similarly, the reason we have precedent on the constitutionality of abortion is because that’s what folks tried to ban.

            1. “The reason we don’t have any constitutional debate over knee surgeries isn’t because we don’t have a constitutional right to them, it’s because we don’t have any politically active group trying to categorically ban them.”

              That’s not exactly true . The FDA has to approve all knee-surgery techniques which means all others are banned. Same for every other kind of surgery. The FDA must positively approve all of them before any person can get one. Unapproved by FDA == banned.

        2. “In fact, the language he uses would intimate that he might think that the 14th and incorporation means that the states are also extremely limited in their powers.”

          Cyto understands.

        3. “The 4th does clearly seek to protect a right to privacy – but it talks about a limited way in which the government can violate this right.”

          No, no, no. Please go to the debates on the Constitution and the Bill of Rights and find even a single reference to any “right to privacy”. I double-dog dare you to come up with one. That was not the issue. The issue was getting rid of the General Warrants which the British government used with devastating effect generally, and particularly in the period leading up to the Revolutionary War. It was about limiting government power over the citizenry. Period. And as you note, it does not deny the government the right to search and seizure, it only requires a search warrant based on a showing of probable cause, which the government gets without the person subject to the search even knowing that the warrant is being sought. “Privacy” has nothing to do with it. Like the rest of the Constitution the 4th Amendment means what it says, no more and no less.

      2. It is a huge stretch to say that being secure against unreasonable search and seizure translates to a right to privacy, especially along the lines of government preventing the taking of a human life.
        There is no federal law against murder because Congress doesn’t think it within their enumerated powers. The closest it gets is if it is determined to have violated another set of rights, created out of whole cloth – someone’s “civil rights”.
        Laws prohibiting the killing of another human are left to the states.
        Why should the federal government, of which the SC is part, be allowed to permit something that it doesn’t believe it should be able to prohibit?

        1. It is a huge stretch to say that being secure against unreasonable search and seizure translates to a right to privacy

          That’s why nobody ever did that.
          Privacy is in the 9th Amendment, fascist.

          Laws prohibiting the killing of another human are left to the states.

          We have no right to life!
          (In the brainwashed minds of the Authoritarian Right)

          (shudder)

          Why should the federal government, of which the SC is part, be allowed to permit something that it doesn’t believe it should be able to prohibit?

          Life and Liberty are both unalienable, which means co-equal, along with any and all such rights.
          Accept liberty. Or leave.

    2. Read the 9th Amendment. (lol)

  17. Kavanaugh is dodging the question. “History and tradition” were at one point NOT history and tradition and someone had to make a call. It’s clear we have the right to privacy and the right to do what we want to do with our bodies. Kavanaugh is a poor choice if one appreciates liberty and what liberty truly means.

    1. Because abortion?

      1. Abortion is a perfect example of hard cases making bad law.

        The whole “privacy” thing is a canard. If the feds wanted to ban oral sex, we’d all be on board with a right to privacy. And yet they do regulate other medical procedures and nobody seems worried about a right to privacy in those cases.

        But privacy isn’t what the critical point is for the question of abortion. They just punted on the real question to get the desired result.

        The real question is “murder or not murder”. Nobody is going to be able to definitively answer that. At least, not to the satisfaction of those who come down on the other side of the issue.

        And there is no way to pull legal precedent or medical science into the argument. It is all a matter of personal belief.

        1. It is completely dishonest to claim that it takes the passing through the birth canal, or extraction through an incision, to impart life upon the child.
          There is a medical science argument, at least for post viability, that abortion is taking a life.
          Through that same medical science, for those who don’t consider a child an inconvenience, viability has been extended to a mere twenty weeks of gestation.

          1. Only a moron or imbecile would deny that the fetal child has full rights at conception.
            But so does the women.

            And only a moron of imbecile rejects the clear meaning of unalienable.
            An unalienable right (aka fundamental) right is absolute.
            EXPLODES your brain, eh.

            And when two absolute rights are inconflicy, only the judiciary is empowered to resolves the conflict, and they must do so in a way that best defends both rights equally.

            This ENRAGES the Authoritarian Right and Authoritarian Left — both of which snarl and seek to impose only their own preferred right as absolute by the force of law, on such issues as gun ownership and abortion — in blatant rejection of our Founders clearly expressed intent.

            Fuck off, slavers.

    2. History and Tradition go back many thousands of years, so when the US Constitution was written there was no lack of History or Tradition. In fact the Constitution is pulled from a rich back ground of History and Tradition itself.

    3. ” “History and tradition” were at one point NOT history and tradition and someone had to make a call. ”

      And the 9th amendment merely constitutionalizes the state of that “call” at the time it was ratified.

      1. ” “History and tradition” were at one point NOT history and tradition and someone had to make a call.

        For 500 years, that call has been made by Judges and Tribunals. This is elementary history of individual rights. Learn it in high school, if you ever make it there.

        And the 9th amendment merely constitutionalizes the state of that “call” at the time it was ratified.

        What does “liberty” include, Sparky? “Pursuit of Happiness?”
        (ridicule)

    4. “It’s clear we have the right to privacy and the right to do what we want to do with our bodies”

      It is? The Constitution and Bill of Rights provide neither such protection.

      1. Read the Ninth Amendment, facsist.

  18. It was brilliant to reference Kagan.

    I sympathize with Bork. His point is that the robes shouldn’t have more power than the voters. The 9th amendment can be used to justify almost anything.

    I think it is an important abstract concept but the 9th doesn’t provide any positive guidance for a judge. Unless it is being used to justify an appeal to common law as precedent.

    1. I don’t sympathize with Bork. It was a rotten thing to say, no part of the Constitution is an “inkblot”, it’s easy enough to make sense of the 9th amendment without turning it into a blank check.

      Sure, the 9th amendment doesn’t provide positive guidance in isolation. It leads to a factual inquiry as to whether a proposed right actually was regarded as a right at the time of ratification.

      1. That’s a dumb theory of interpretation and leads to the same ridiculous arguments that the 2nd only applies to muskets, and by extension, freedom of the press would only apply to hand-operated single-shot presses.

        1. Scalia literally ridiculed your muskets and hand-operate printing presses, in Heller

          The Authoritarian Right and Left have always hated the Ninth Amendment — with the bat-shit crazy argument that we have rights that government may never defend.

          War is peace. Freedom is slavery. Ignorance is strength.
          In the totalitarian mind control of Orwell’s 1984.

    2. “I think it is an important abstract concept but the 9th doesn’t provide any positive guidance for a judge. ”

      I don’t see how any person who honestly understands the 9th and gives two shits about individual liberty can believe this. The 9th is eminently clear.

      “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

      The concept here is so important that they split the second part into a WHOLE SEPARATE AMENDMENT, the 10th.

      “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”

      In short, the rights of the people are not limited to the amendments and in fact, all other powers anyone can possibly conceive of are explicitly NOT given to the Federal govt in this constitution. They made a whole amendment to reiterate that fact that was already implied by the existence of the constitution itself. The 9th and 10th amendment are the ‘let me repeat myself because I know you scumbags are going to try to get around this ” amendments.

      It’s pretty simple actually.

      1. +10000 unenumerated rights.

        1. The founders said that’s for the judiciary to decide. And the 9th is a strict limit on the 10th, because rights are above powers, in a government of delegated powers. No, states may not do whatever they choose. The states ratified the limits of 9A! SCOTUS defends our rights from any and all levels of government.

          We call it limited government to defend individual liberty, Equal, Unalienable and/or God-Given Rights.
          Or your free to leave. for Cuba, North Korea, China, and many lesser knowns.

  19. Gorsuch answered a yes or no question with a yes. Kavanaugh answered an essay question with an essay. I don’t see the problem.

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  22. Is there anyone out there who knows Kavanaugh’s views and beliefs on civil asset forfeiture?

  23. Yeah, the Authoritarian Right actually says many things that are bat-shit crazy, like we have rights but are powerless to defend them from government abuse, because Thomas Jefferson and the Founders were imbeciles. This is aligned with the Ron Paul/KKK denial that we have THREE co-equal branches, and the fascist notion that judges cannot “invent” rights that are in-con-veeeen-yent to their totalitarian state. But rights have been defined and/or recognized by judges and tribunals for several centuries before our founding. But what is historical fact compared with the “purity” of totalitarian obedience.

    There’s is the modern version of Jim Crow which means, all told, that we have no protection at all from abuses by the Federal Legislative and Executive branches, or state governments. The New Inquisition.

    Be afraid.

    1. Congratulations on one of the most verbose yet incomprehensible statements on the Constitution and the right wing of American politics outside of Michael Hihn and the good Reverend.

      1. Thanks! Anyone who says we have three co-equal branches can only must be a crazed …
        libertarian!

        Libertarians are neither right nor left.
        You’re also ignorant of our Constitution.
        Typical.

  24. His stance from the beginning was that his decisions would be based on the text of the Constitution and on case law rather than his own beliefs. His answer reflected that by citing case law.

  25. What, he refused to answer a hypothetical?
    Is that all you got?

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